Copyright law protects websites and their elements including creative graphics, logos, design elements, photos, advertising copy, blog posts, videos, music and the underlying software.
Copyright law does not protect short phrases, tag lines, or business and domain names. Trademark law may protect those elements. (See the Trademark category for posts on the subject.) Copyright law also does not protect the ideas on your website. Although patents may protect business methods involving websites, underlying, exposed ideas have no legal protection.
Copyright protection is automatic when the creative work is created. Ownership of the copyright vests in the author of the work unless the author is an employee creating the work within the scope of her duties or there is a written agreement that transfers copyright ownership.
1. Avoiding Copyright Infringement
Most critically for website owners, you should make sure that you are not infringing a third party’s copyright.
Ask yourself:
Do I have permission to use each and every element of my website?
If you don’t have the right or permission to use the work on your site, you may be infringing someone’s copyright. And you may get a demand for damages or you may get sued.
You can use the work on your site if you created the work yourself or if you have the following:
- a license for a photo from a stock site
- a license for music or video that allows the use
- a website design agreement that transfer the copyright to your company
- a logo design agreement that transfers the copyright to your company
- a software license to the foundation for your site
- a license from a content creator in your website’s Terms of Use
Oral permission to use a work gives you a limited license and sometimes you may have an implied license if the work was created with the intention that you use it on your website. This type of permission is shaky and may be revocable.
If you had someone else create your website, you must still make sure that you have permission to use every element of the site that the designer incorporated. Did the designer get a proper license that is transferable to you? If they got a license, get a copy. If not, you may be infringing.
It is not a defense to infringement that your website designer put the photo or music or text on your site.
If you own the site, you are liable for copyright infringement that happens on your site! As a precaution, I personally license all elements that are used on my sites. The designer simply gives me the stock number and I get a direct license from the licensor.
If you allow others to freely post content on your website, WATCH OUT. Even if your website is only a passive conduit for content, you may be liable for indirect infringement. (See our next post on how Internet Service Providers can get a safe harbor under the DMCA.)
Importantly, if you ever want to sell you site, make sure you have solid copyright permission for every element in the form of a license or copyright assignment agreement. You want to make sure that your website can survive a due diligence examination by an IP attorney. They will look very closely at copyright issues. A lack of proper copyright licenses or assignments can stall or kill your deal.
2. Protecting Your Website
To protect your website, there are several things you can do.
First, putting a copyright notice on your website is not required for protection but it is a good idea to prevent someone from claiming they are innocent rather than willful infringers.
Second, you may register your website with the Copyright Office. A federal registration has many benefits including access to the courts, statutory damages and attorneys’ fees if registered before infringement. (This is why you should be extremely careful not to infringe a registered work. Beware, many professional photos are registered!) Because most websites are dynamic and change frequently, however, registration can be tricky. Your website registration will have to be updated periodically to get full protection. See Copyright.gov for more information about registering a work.
Jill Hubbard Bowman is an IP attorney who helps emerging growth companies increase the value of their companies through strategic use of intellectual property.
The information provided in this legal blog is not intended as legal advice and does not create an attorney-client relationship. Please do not submit questions or comments seeking legal advice or submit confidential information through this blog. By communicating through this blog, you understand and agree that the information will not be treated as confidential and the publisher has no duty to keep it confidential.
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